Article 377 and Today’s Social Reality by Kanan

I was in the US capital city, Washington D.C., on the day that same-sex marriage was legalized in the United States. Thousands visited the White House on that day, gathered on its lawns to see it light up in every color of the rainbow. People of all sexuality were celebrating, holding hands with their loved ones.

I had actually thought, in those moments, what this huge victory would feel like if I was in a same-sex relationship, in hopes of getting married.

But, then, of course, my first thought was simply: I can’t even imagine, my parents are Indian!

Yes, I know, there are Indian families who are accepting of same-sex relationships and marriages in their homes, but they constitute the minority. A majority still can’t accept it because it is considered “anti-Indian”, as most expressions of individuality seem to be in India today, especially everything related to love and sex.

Legalizing same-sex marriage in India dur ki baat hai. Same-sex couples in India are still committing crimes by simply being together, according to the two-century-long interpretation of Article 377 of the Constitution, which says:

Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.[1]

This was an article created in 1861, a British-era addition that has been carried to today. It is a contested article because it has been interpreted to include homosexuality, which the law considers to be “against nature”.

There are same-sex couples in India and Pride Parades still take place in major Indian cities. However, these couples participating in pride parades once again constitute the minority. Many same-sex couples in India are still living discreetly, unable to express their true selves, in fear of being found out by their social circles.

How does Article 377 contribute to their fear? If their social circles found out about them, they could report the couple to the police for doing something the law considers to be “against nature”. This article allows police to target them simply for being together, and this is all an infringement on their happiness, dignity, and privacy, as guaranteed by Article 21:

“No person shall be deprived of his life or personal liberty except according to a procedure established by law.”

The “procedure established by law” is in favor of Article 377, but the former part of this Article, “No person shall be derived of his life or personal liberty…” is yet to be defined fully. What is personal liberty according to the law? Aren’t “life” and “liberty” ever-changing words, meant to adapt to the reality of social situations that are just outside the heavy doors of the Indian judiciary?

But, positive change in regards to Article 377 is almost here. India’s judges have been recently contemplating the idea of how Indian law is changing as freer love comes to the surface instead of simmering angrily within people. The Indian judiciary has had many discussions and rulings regarding this Article, which I will not include in detail here. The timeline and summary of hearings and rulings over the years can be found in the following articles:

What is most important is that slowly, the Court is showing a positive attitude towards changing up this article. In January of this year, the Supreme Court “read down” Article 377 and considered it archaic, calling for a reconsideration of a petition filed earlier by five people living in fear of prosecution because of their sexuality.[2] A larger panel of judges revisited their petition to make Article 377 friendlier to today’s social reality. Chief Justice Deepak Misra said necessary words: “Social morality…changes from age to age. The law copes with life and accordingly, change takes place.”[3]

Recently, as we have seen in our newspaper headlines, the Supreme Court spent four days in July hearing the arguments in favor of changing and/or striking Article 377. It was said that the Modi government wanted them to be postponed, but Justice Misra insisted that these hearings were long overdue. The five people who had filed the petition earlier were represented, along with various advocacy organizations. They proposed many changes and reasons as to why 377 no longer applies today. One such proposed change was adding the word “consent” into 377.[4]

We are still awaiting the Court’s judgment, but what we do know is that the panel, especially the Chief Justice, is much friendlier to today’s social realities. So, I am optimistic!

I have one question for discussion, in all of this. I think back to the United States, when same-sex marriage was illegal, and I think to current affairs in India. Why does the government need to have a say in who loves who? I believe that the government should only have a say when someone has been wronged, when fundamental rights have been taken away or compromised. In matters of love, the government should have a say when consent is not in the picture.

But, it just so happens that governments around the world need to be involved in love. If 377 is amended, though this will not legalize same-sex marriage, it will be the largest step forward for the LGBT community in the world.

And that would be quite incredible.

Indians are eagerly awaiting the verdict on Article 377, because, it’s time to take this step forward.

[1] Bestiality is not being discussed by the Court or in this article.